It will have taken over 12 years, but April 2008 will see the introduction of a statutory criminal offence of corporate manslaughter. So what exactly is the new offence and what does a school need to be doing to minimise the chances of making next years headlines?

The new offence

The new offence will apply to all organisations whatever their legal standing provided that they owed a relevant duty of care to the deceased as:

		employer
		occupier of premises;
		(i) supplier of goods or services (whether for consideration or not) (ii) undertaker of any construction or maintenance operations (iii) the carrying on by the organisation of any other activity on a commercial basis, or (iv) the user or keeper of any plant, vehicle or other thing

Relevant duty holders will be guilty of an offence if ‘the way in which any of its activities are managed or organised by its senior managers caused a person’s death and amounts to a gross breach of a … duty of care owed ….’

A “senior manager” is defined as someone who plays a significant role in the making of decisions about how the organisation or a substantial part of its activities are managed or organised, or someone who actually manages and organises.

This requirement, whilst much wider than the old ‘directing mind test’ that prevented so many prosecutions in the past, will still mean that schools will not be liable where the actual failure causing the death was a long way down the chain of command. This may be a fertile area of argument in the first few cases but it seems unlikely that Courts will place too strict a definition on the term given that the whole purpose of the Act is to make it easier to prosecute.

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Gross

Whilst using the same term as the common law offence of gross negligence manslaughter, the new offence is not simply asking the Court to decide whether the conduct was so bad that it should be considered criminal; whether it has the look and feel of manslaughter in the eyes of the public. Gross breach is defined under the Act as being ‘where the conduct of the organisation falls far below what can reasonably be expected of the organisation in the circumstances’. The jury must consider whether the evidence shows that the organisation failed to comply with any health and safety legislation and if so consider how serious that failure was and how much of a risk of death it posed. The jury may also consider the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices within the organisation (not necessarily directly related to the breach in question) that were likely to have encouraged or tolerated any such failure. Interestingly they may also have regard to any relevant health and safety guidance along with any other matters they consider relevant.

This will mean that any failures to follow mere guidance could be left to the jury to evaluate in their deliberations on whether there was a gross breach of duty. The jury will also be able to tot up various failures at different levels within the organisation and aggregate them together when deciding whether there was a gross breach of a relevant duty of care.

What is clear though is that the Act is intended to catch the kind of systemic failings that presently allow organisations to avoid prosecution. Where there is wholesale disregard of guidance and best practice that may well be sufficient to amount to a gross breach.

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No personal liability

An individual cannot be guilty of aiding, abetting, counselling or procuring an offence of corporate manslaughter. They can of course continue to face charges under the existing common law offence of gross negligence manslaughter in respect of their own personal conduct and can be prosecuted individually under Health and Safety legislation.

However, it is this lack of individual liability that critics say fails to give the new offence teeth. They say that without individuals, who hide behind the corporate veil, being brought to account there will continue to be an incentive to cut corners, save money and this will cost lives.

Reputational damage

The alternative view is that companies and public sector organisations spend significant sums on managing their image and that a manslaughter charge will cost far more in the community than they will ever have to pay in fines.

Given that the Jury will be asked to undertake a kind of Health and Safety audit at trial, the single most valuable thing you can do is revisit your entire H&S compliance strategy and decide whether you really are giving it the level of importance it deserves. Who is leading on H&S in your school? Is the same person that it says it is in your policy? Are you actually creating greater risk by devolving control amongst the organisation? What are your five biggest risks and what are you doing about them?

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Self defence

So in the eyes of the public, justice will be achieved through the new law, but what should boards of governors and senior staff be doing?

The Government were at pains to point out that it is their intention to reserve the new offence for only the very serious cases, where this sort of criminal sanction is appropriate. It is designed to compliment rather than supplant existing liabilities under health and safety law; it imposes no new legal responsibilities or higher standards, but we are clearly playing for bigger stakes.

It is vital that you carry out your own evaluation of health and safety compliance to ensure that you are a long way from what any jury could conceivably consider to be below what is expected.

Conclusion

From April 2008 the response of the Police and HSE will be magnified and persistent as they seek to establish convictions under the new offence.

First the Crown Prosecution Service and then the jury will be asked to evaluate how far below the level that can be expected in the circumstances the conduct fell. They will do that by reference to compliance with health and safety legislation and guidance.

You should be carrying out that evaluation yourselves now to identify where improvements can be made whilst at the same time putting in place the infrastructure for you to be able to deal with the worst should it happen. This will mean clear incident management policies that control the flow of information and manage the external investigations as far as possible.